Dall Reynolds v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia
DALL REYNOLDS
MEMORANDUM OPINION ∗∗ BY
v. Record No. 3012-99-2 JUDGE LARRY G. ELDER
JANUARY 16, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ESSEX COUNTY
Joseph E. Spruill, Jr., Judge
David B. Hargett (Morrissey & Hershner, PLC,
on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Dall Reynolds (appellant) appeals from his four bench trial
convictions for distribution of marijuana. On appeal, he
contends the trial court erred in failing to permit him to
withdraw his guilty pleas. The Commonwealth contends this issue
is not properly before us on appeal because appellant did not
obtain a stay of the sentencing order or a ruling on his motion
to withdraw the guilty pleas prior to the expiration of
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
twenty-one days following entry of the sentencing order. We
agree with the Commonwealth and dismiss this appeal.
I.
BACKGROUND
Appellant was indicted on numerous charges of distributing
marijuana to minors. He pled guilty to four counts of
distribution in exchange for the Commonwealth's agreement to
dispose of the remaining charges by nolle prosequi. Following
preparation of a pre-sentence report, the trial court sentenced
appellant to serve fifty years in prison, with forty years
suspended, on each of the four convictions. On November 22,
1999, the trial court entered the sentencing order.
On December 8, 1999, appellant filed a motion asking the
trial court to stay or suspend execution of the final order and
attached a draft stay order to his request. Appellant indicated
that a motion to withdraw his guilty pleas would accompany the
motion to stay and draft order and that all documents would be
transmitted to the court by both facsimile and overnight mail.
Appellant informed the court he sought the stay because the
court would lose jurisdiction over the matter under Rule 1:1 on
December 13, 1999, and appellant had been unable to obtain a
date for a hearing on the motion to withdraw his guilty pleas
until at least December 22, 1999.
Although appellant's motion to stay and draft order appear
to have been filed on December 8, 1999, while the trial court
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retained jurisdiction over the matter, it is unclear from the
record whether the motion to withdraw the guilty pleas was filed
before or after December 13, 1999, the date on which the trial
court lost jurisdiction to modify, vacate or suspend the
sentencing order. 1 The record on appeal also contains no
indication that the trial court acted on appellant's motion to
stay or motion to withdraw his guilty pleas prior to its loss of
jurisdiction on December 13, 1999.
On December 20, 1999, appellant noted an appeal to this
Court.
II.
ANALYSIS
Appellant's sole contention before us on appeal is that the
trial court committed reversible error in failing to permit him
to withdraw his guilty pleas. Pursuant to Rule 1:1, we hold
that appellant's failure to obtain a ruling on this motion
requires dismissal of the appeal.
1
The certificate of service attached to the motion to
withdraw indicates that appellant mailed a copy of the motion to
the Commonwealth's attorney on December 8, 1999. It does not
indicate whether the motion was also filed in the trial court on
the same date. The motion contained in the court's file bears
no notation indicating the date of filing. A cover sheet which
was provided by the trial court with the record on appeal but is
not a formal part of the record indicates that the motion was
not filed until February 28, 2000. We assume without deciding,
for purposes of this appeal only, that appellant's motion to
withdraw his guilty pleas was timely filed.
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Rule 1:1 provides, in relevant part, that "[a]ll final
judgments, order, and decrees . . . shall remain under the
control of the trial court and subject to be modified, vacated,
or suspended for twenty-one days after the date of entry, and no
longer."
"Neither the filing of post-trial or
post-judgment motions, nor the court's
taking such motions under consideration, nor
the pendency of such motions on the
twenty-first day after final judgment is
sufficient to toll or extend the running of
the 21-day period prescribed by Rule 1:1
. . . . The running of the time . . . may
be interrupted only by the entry, within the
21-day period after final judgment, of an
order suspending or vacating the final
order."
D'Alessandro v. Commonwealth, 15 Va. App. 163, 166-67, 423
S.E.2d 199, 201 (1992) (quoting Sch. Bd. of Lynchburg v. Caudill
Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323
(1989) (citations omitted)).
Thus, assuming without deciding that appellant timely filed
the motion to withdraw his guilty pleas, the mere pendency of
the motions to stay and to withdraw on the twenty-first day
following entry of the sentencing order did nothing to extend
the trial court's jurisdiction. Further, appellant assigns
error only to the trial court's "failing to permit [him] to
withdraw his pleas of guilty." Because appellant failed to
obtain a ruling on the merits of the motion to withdraw his
guilty pleas, we have nothing to review on appeal.
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Appellant contends the trial court's failure to rule on the
motions must be considered tantamount to a denial of the motions
on the merits for purposes of appeal. Otherwise, he argues, the
circuit court would be "unduly empower[ed] . . . with the option
to not rule on post-trial motions as a means to forever bar the
Defendant from seeking further review of the merits of [such]
post-trial motions." Because appellant was not without a remedy
when the trial court failed timely to act on his motions, we
disagree.
As the expiration of the twenty-one day period approached,
it was appellant's duty either to obtain a ruling from the trial
court on one or both motions or to take some action to get the
trial court to act on the motion or motions in a timely fashion.
Although the trial court had discretion in determining how to
rule on appellant's motions, it lacked discretion in deciding
whether to rule on the motions. The trial court could have
granted the stay and ruled on the merits of the motion to
withdraw the guilty pleas at a later time, granted the motion to
withdraw, or denied the stay based on a determination that the
motion to withdraw lacked merit. If the trial court had taken
any of these actions in a timely fashion appellant's right to
appeal would have been preserved. In the absence of such
action, however, the record contains no ruling on the merits of
appellant's motion, and we have nothing to review on appeal.
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For these reasons, we dismiss appellant's appeal.
Appeal dismissed.
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